A memorandum of settlement recording past oral partition as a family settlement is not required to be registered under Section 17(1)(b) of the Indian Registration Act.

1. The defendant in O.S. No. 117 of 1997 on the file of the Principal Subordinate Court, Tenkasi is the revision petitioner.

2. The said suit was filed by the respondents herein/plaintiffs for partition. The revision petitioner is the son of the first wife of the fourth plaintiff and respondents 1 to 3 are the daughters of the second wife of the fourth plaintiff. Alleging that the family remains undivided, the said suit was filed for partition. In the written statement filed by the revision petitioner, he alleged that between himself and the fourth plaintiff, there was an oral partition on the basis of the Panchayat and plaintiffs 1 to 3 also relinquished their claim and agreed for a division and on the basis of the panchayat held, the properties were taken possession. To substantiate that there was a panchayat and consequent oral partition, the petitioner relied upon a memorandum of settlement executed between himself and the fourth plaintiff dated 24. 1996 and he wanted the said document to be admitted in evidence. The respondents herein opposed the marking of the document on the ground that the document dated 24. 1996 is compulsorily registerable under Section 17 (1) (b) of the Indian Registration Act and consequently, it should not be considered for any purpose. The lower Court accepted the objection and refused to mark the same. The same is challenged in this revision petition.

3. Before going into the merits of the case, it is better to consider the law on the point as laid down by the Supreme Court in the case of Roshan Singh v. Zile Singh, AIR 1988 SC 881 wherein their Lordships considered the question under what circumstances, the registration of a document is necessary, It was held as follows:

"It is well settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under S. 17 (l) (b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration, section 17 (l) (b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flows (l) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, S.49 of the Act will prevent its being admitted in evidence. Secondly evidence of the factum of partition will not be admissible by reason of S.9l of the Evidence Act. 1872. (2) partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition: see Mullas Registration Act. 8th Edn.pp. 54-57.1

4. Again in the case of Bakhtawar Singh v. Gurudev Singh, 1996 (9) SCC 370, the said decision was followed by the Supreme Court herein it was held thus: The memorandum Ex.A1 recording past partition put on record before the Rent Controller was not pronounced upon and, was brushed asid